Hamilton (City) v. McNiven, 2018 ONCJ 974

CITATION: Hamilton (City) v. McNiven , 2018 ONCJ 974 DATE: August 22, 2018 Information No. 14 2997 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JAMES MCNIVEN ********** REASONS FOR SENTENCE HIS WORSHIP JUSTICE OF THE PEACE D. D’IGNAZIO At Ontario Court of Justice, Hamilton, Ontario On August 22, 2018 ********** APPEARANCES : L. Clayton Municipal Prosecutor G. Murphy Municipal Prosecutor J. McNiven Defendant Present in Person WEDNESDAY, AUGUST 22, 2018

HIS WORSHIP : Madam Clayton has just walked in. Madam… MS. CLAYTON : Yes, sir. HIS WORSHIP : …are you ready to proceed? MS. CLAYTON : I am, sir. And I apologize if I’m late; I had it marked scheduled for ten o’clock this morning, so I was upstairs. HIS WORSHIP : I see that Mr. McNiven is here. I think we can proceed… MS. CLAYTON : Thank you. HIS WORSHIP : …if you are ready? MS. CLAYTON : I am. HIS WORSHIP : Thank you. MS. SKOROPADA: If I might be excused for the moment, Your Worship? HIS WORSHIP : Please. Mr. McNiven? MS.

CLAYTON : And just by way of introduction, for the purposes of the record, Your Worship, we’re here this afternoon – this morning, pardon me – for the matter of James McNiven , convicted on an earlier date, here for sentencing this morning. HIS WORSHIP : Thank you. MS. CLAYTON : Thank you. HIS WORSHIP : All right. And I note that Mr. McNiven is in the courtroom at the present time. We can begin. Have a seat, sir. JAMES MCNIVEN : Thank you. HIS WORSHIP : And you can remain seated, Mr. McNiven. This is going to take a little while to go through. R E A S O N S F O R S E N T E N C E D’IGNAZIO, J.P. (Orally) A.

INTRODUCTION James McNiven, the defendant, stood charged on 56 counts that on or about July 20 th , 2014 and August 10 th , 2014 at the former Town of Ancaster, now the City of Hamilton, did commit the offence of unlawfully removing, injuring, or destroying a tree as prescribed in s.3.1 of Bylaw 1000-80, the Corporation of the Town of Ancaster, as amended, without a permit and did thereby commit an offence, contrary to s.10.1 of the Town of Ancaster Bylaw 2000-118 as amended. On June 29 th , 2018 the defendant was found guilty on all counts. Fulsome reasons were provided under separate cover.

Upon completion of the delivery of my reasons for decision, the sentencing hearing was adjourned to August 22 nd , 2018. Written submissions were requested by the court from the prosecutor and the defendant by August the 7 th , 2018 and were so received. I’m satisfied that the defendant has been afforded reasonable time to make full answer and defence. Here is my sentencing speech on judgment and reasons, therefore. B.

THE LAW The applicable law in this matter is the Corporation of the Town of Ancaster Bylaw 2000-118 s.10, which states as follows: Penalties for Non-Compliance with Bylaw: 10.1 A person who contravenes any provision of the bylaw, the terms or conditions of a permit, or an order is guilty of an offence and on conviction is liable, 1) on first conviction to a fine of not more than $10,000; 2) on any subsequent conviction to a fine of not more

than $20,000.” 1 0.2 In addition to any other remedy and to any penalty imposed by the bylaw, the court in which the conviction has been entered and any court of competent jurisdiction, therefore, may, 1) make an order prohibiting the communication or repetition of the offence by the person convicted; 2) may order the person to replant or have replanted trees in such a manner and within such a time period of time as the court considers appropriate. The bylaw was enacted by the Town of Ancaster.

Accordingly, the procedure codified in the Provincial Offences Act , R.S.O. 1990, CP.33, here and after referred to as the POA , applies here. There are no provisions in the POA which define the principles to be applied relative to the issue of sentencing. Those principles relative to Provincial regulatory offences, together with the objectives to be considered in determining an appropriate sentence for such offences are established in common law.

The leading case in the area of sentencing principles, including the goals of sentencing, applicable to regulatory or “public welfare” offences is the Ontario Court of Appeal decision in R. v. Cotton Felts Ltd. [1982]. In that decision the court dismissed the appeal of the corporate defendant against the fine imposed upon conviction for a breach of the regulations made under the Occupational Health and Safety Act , [1978].

The unanimous panel of the court concluded that the fine imposed was, “in all respects, a fit sentence.” In Cotton Felts , Blair, J.A., made the following comments relative to the factors to be applied in crafting sentences for regulatory offences in paragraphs 19, 20, 21, and 22, therein as follows: The amount of the fine will be determined by a complex of considerations including the size of the company involved, the scope of the economic activity at issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence. Also reference R. v. Ford Motor Company of Canada Ltd. [1979] and Nadin-Davis, Sentencing in Canada , pg. 368 and cases cited therein. The paramount importance of deterrence in this type of case has been recognized by this court in a number of recent decisions. An example is provided by R. v. Hoffman-LaRoche Ltd. [1980]. In that case Mr.

Justice Linden imposed a fine of $50,000 for an offence under the Combines Investigation Act, 1970 and stated that the principles governing the amount of a fine as follows. In conclusion, I feel that a fine that is more than nominal, but which is not harsh, would be appropriate in this case. The amount must be substantial and significant so that it will not be viewed as merely a license for illegality, nor as a mere slap on the wrist. The amount must be one that would be felt by the defendant.

It should also serve as a warning to others who might be minded to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. The sentence was upheld by this court, [1981], where my brother Martin said at pages 160 to 161, “ A careful examination of those reasons satisfies me that general deterrence was the paramount factor to be considered in arriving at an appropriate sentence.” Another example is provided by this court’s decision in R. v. K-Mart Canada Ltd., 1982.

In that case the court increased the fine of $25,000 to $100,000 for a company convicted of conspiring to interfere with the formation and operation of a trade union, contrary to the Labour Relations Act , RSO 1970. In doing so, Chief Justice Howland had this to say at page 332: In our opinion, the fine imposed did not adequately reflect the gravity of the offence and was an error in principle. The fine must not be tantamount to a license fee to commit illegal activity but must be sufficiently substantial to warn others that such illegal activity will not be tolerated.

The main factors in the computation of a fine expressed in these decisions are the same as those expressed by Judge Dnieper, the sentencing judge in the subject case, "without being harsh the fine must be substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere license fee for illegal activity." It is clear that the Ontario Court of Appeal has emphasized deterrence in sentencing, both in the form of specific deterrence so as to send a direct signal to the specific regulatory offender that continued violations of statutory provisions enacted in the interests of public welfare will not be tolerated; and in the form of general deterrence so as to dissuade other persons who might be disposed to contravene such provisions from engaging in such conduct, as the paramount objective to be considered in sentencing an offender relative to a regulatory offence.

In her decision in R. v.

Mardave Construction Ltd., [1990] O.J., Katarynych, J. noted that in the context of sentencing an offender for a contravention of the Occupational Health and Safety Act , a court, “ must keep in mind the mischiefs that the statute sets out to cure and to reinforce, not only for the offender at bar but also his peers in the community, the importance of those statutory objectives.” In the case at bar, the defendant has been convicted of an offence contrary to a statute enacted for the purpose of “protecting the unique diversity and character of a town’s tree resources because of their ecological, cultural, and economic value.” The Corporation of the Town of Ancaster Bylaw 2000-118,

Preamble. The objectives of the legislation clearly relate in part to the notion of environmental and ecological preservation. Accordingly, in my view, the following observations made by His Worship Decker in Ontario Ministry of Natural Resources v. 819743 Ontario Inc. are instructive. The Honourable Mr.

Justice Todd Archibald and Professors Kenneth Jull and Kent Roach at pages 12 to 16.2 and 12 to 17 of their textbook, Regulatory and Corporate Liability – From Due Diligence to Risk Management , (2007, Canada Law Book, a division of the Cartwright Group Ltd.,) are relevant to the factors that I must address in passing sentence against the corporate defendant in this proceeding. Restorative justice principles are, perhaps surprisingly, found throughout regulatory sentencing as much as this law owes its heritage to environmental protection.

The concept of restoring the environment to its state prior to the violation took hold. As noted earlier, there are various environmental statutes that authorize courts to make orders to restore the natural environment within a period of time specified. In the environmental context, for example, the nature of the environment affected and the extent of the damage inflicted are factors that the court will review on sentencing.

The 'polluter-pays' principle has been endorsed in Principle 16 of the Rio Declaration on Environment and Development , (United Nations Conference on Environment and Development, Rio de Janeiro, June 3-14, 1992,) which provides: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments taking into account the approach that the polluter should, in principle, bear the cost of pollution with due regard to the public interest and without distorting international trade and investment .

Conversely, the mere absence of environmental damage will not be a mitigating factor. The violation of permit requirements, even if not resulting in environmental damage, has been held to be important to the integrity of the legal system itself and punishable as such. Given the proactive nature of much of regulatory law, arguments about de minimis effects ought to be viewed with skepticism . In assessing damage to the environment, prosecutors may rely on the analogy of “death of a thousand cuts” to illustrate the cumulative nature of environmental damage. This phrase has its origin in the case of R. v.

Panarctic Oils Ltd. [1983] per Justice Bourassa who said in imposing sentence, In my view, the destruction of any ecosystem or environment is a gradual process effected by cumulative acts, a death by a thousand cuts, as it were. Each offender is as responsible for the total harm as the last one who visibly triggers the end. The first offender can’t be allowed to escape with only nominal consequences because his input is not as readily apparent.

I have to concur with the Crown that damage to the environment here is not a factor that would be taken into consideration other than if there was concrete evidence before me of serious harm to the environment. Then, in my view, that would be an aggravating circumstance. Sentencing judges should not second-guess legislative risk assessments. I must also take into account the concepts of proportionality, parity, and totality as appropriate principles of sentencing relative to regulatory offences.

In the case at bar, I am charged with the responsibility of determining the appropriate sentence to be pronounced upon an individual defendant that has been found guilty of 56 counts of unlawfully destroying 56 heritage trees located on the property known as 558 Golf Links Road in Hamilton. Accordingly, I am of the view that the sentencing principle of totality is also relevant to the subject sentencing proceeding.

In its decision in Reference Re: B.C. Motor Vehicle Act , the Supreme Court of Canada generally described the principle of proportionality by noting that a sentence should “ bear some relation to the offence ; it must be a 'fit' sentence proportionate to the seriousness of the offence ." Furthermore, in its decision in R. v.

C.A.M. [1996] the Supreme Court of Canada noted that in imposing a sentence which conforms to the principle of proportionality, “ The quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.” Referencing the Supreme Court of Canada in R. v. M.(C.A.) [1996], the Ontario Court of Appeal in R. v. Parry [2012] discussed the totality principle as follows: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the totality principle.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing , (1979 at page 56,): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate.” In arriving at a fit sentence, I am required by law to balance the principle of proportionality of sentence with the principle of parity of sentence.

Once again, I find His Worship’s Decker's speech in the aforementioned ( Ministry of Labour Resources) v. 819743 Ontario Inc. decision informative to the matter at issue. The principle of parity is a principle which has been generally defined in common law as one which mandates that similar sentences be imposed on similar offenders and similar offences in the context of like comparable circumstances.

In his textbook titled, Libman on Regulatory Offences in Canada , (2002,) the Honourable Justice Rick Libman made, in part, the following comments on the principle of parity at pages 11 to 23 and 11 to 24. “The purpose of all sanctions in criminal and quasi-criminal matters is to reduce the incidents of the offence in our society. This is done through a consideration both to specific deterrence and general deterrence. However, the harshest sentence ought to be reserved for the worst possible factual situation.

The fact that the maximum penalty is intended for the worst offence and the worst offender is not to be interpreted as meaning the very worst offence or very worst offender that could be notionally conceived by an unfettered imagination. To be put it another way, there is a requirement for consistency. There should be similar sentences for similar offences for similar offenders. That is like offences for like offenders should attract similar sentences. One of the 'best tests,' then, in assessing fitness of sentence is to compare it to other sentences imposed for similar offences.

There has to be some uniformity of sentence within reason so as to preserve the appearance of fairness in the courts in dealing with the public. A sentence which is desperate is offensive to the notion of equal justice before the courts. But s.718(2)(

b) of the Criminal Code which states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances does not mean that merely because a person is charged with a particular offence this necessarily mandates a specific or a particular sentence that is in line with other sentences imposed for similar offences on other offenders. The court must also consider the circumstances in which the offence was committed. Disparate sentences will be warranted for differences in areas such as degree of involvement in the offence and the offender’s background.

Lastly, it is settled law that I may consider any mitigating factors which have been established by the evidence adduced at the trial or during the sentencing hearing on a balance of probabilities. The existence of mitigating circumstances will bolster a decision to impose a reduced penalty that would otherwise be justifiable. On the other hand, in its decision in R. v.

Gardiner [1982], the Supreme Court of Canada ruled that if the prosecution wishes to rely on aggravating factors to support the imposition of an increased penalty than would likely be imposed through the application of the relevant principles and goals of sentencing, it must establish the purported factors to the standard of proof beyond a reasonable doubt.

If the prosecution is able to prove the existence of such aggravating factors by means of properly admissible evidence to the requisite standard, then it is open to the court to weigh those factors in determining whether the increased penalty sought by the prosecution would be fit

and just in the circumstances. I must determine a fit and just sentence for the defendant on the charge for which it was convicted on June the 28 th , 2018. In doing so, I must apply the principles and objectives of sentencing as established by the relevant case law and, in particular, as enunciated in R. v. Cotton Felts Ltd ., together with the sentencing provisions set out in the Town of Ancaster Bylaw 2000-118.

I must also take the positions of the parties into consideration as provided in their written submissions relative to the various factors which may be considered as either mitigating, so as to justify a monetary penalty below the penalty that would otherwise be imposed, or aggravating, so as to support a penalty in excess of what otherwise might be imposed. C. THE POSITION OF THE PARTIES The prosecution is seeking the maximum fine provided under the bylaw for first-time offenders. Specifically, the prosecution seeks $10,000 on each of the 56 counts, hence $560,000.

In its voluminous sentencing submissions, the prosecution submits that this fine in the circumstances is a fit sentence. According to the prosecution, the matter at bar represents a “worst offender, worst offence” situation. The prosecution posits that imposing the maximum fine per count takes into consideration the nature of the environment affected, the damage inflicted, deliberateness of the offence, attitude of the defendant, and profits realized. The prosecution argues that the defendant’s actions were deliberate, his attitude towards the regulatory regime contemptuous.

The prosecution believes that the defendant deliberately and intentionally ignored an order that was meant to protect the environment. His attitude towards those who attempted to stand in his way was highly aggravating. The prosecution contends that as a result of the commission of the offence, the defendant realized a considerable monetary advantage and suggests that an inference can be drawn that the reason the defendant destroyed the heritage trees was for financial gain.

The prosecution argues that his callous disregard for the environment and the law for the sake of making money is deserving of the maximum fine per count. The prosecution submits that the maximum fine per count is a fit sentence. It is a just and appropriate penalty. It would serve the principles of denunciation, specific and general deterrence, and protection of the environment. It takes into consideration the community public interest in protection of trees and the environment.

Furthermore, the imposition of the maximum fine for this first-time offenders per count is not likely to leave the defendant in financial difficulty. The defendant’s position is that a fine of $560,000 is unjust and violates his rights under Canada’s Charter of Rights and Freedoms . As such, he asks the court to stay his conviction. In the alternative, the defendant appeals to the so-called Keinapple principle and requests that the court limit the penalty to a maximum of $10,000 as laid out in the bylaw for a first conviction. D. ANALYSIS It is difficult to argue against any aspect of the prosecution’s position.

It is well clearly outlined and buttressed by relevant case law. The same cannot be true for that of the defendant. Indeed, I find the position of the defendant convoluted, confusing, and generally difficult to discern. It is evident that the defendant believes he is a victim in this matter as evidenced by his sentencing submissions. In his preface he refers to the prosecution’s “abuse of process experienced through the last four years of court processes” towards him. On page 17 of his submissions he refers to the “political interference in a court proceeding is an example of abuse of process.

The defendant was charged and found guilty in the court of public opinion before the defendant had any opportunity to appear before a court of law." On page 36 he states that, “What the prosecution fails to mention is the trial and execution of the defendant suffered at the hands of public media perpetrated largely by political interests in cooperation with the prosecution’s office.” The defendant on page 37 continues by stating, “The prosecution’s inclusion of the estate value in its sentencing submission, a public document is vexatious, malicious and speaks to the continuing abuse of process.” The defendant on page 37 states, “The defendant is a private individual who has been grievously harmed by a four-year grinding legal process punctuated only by deliberate public humiliation.

The defendant will be speaking with independent legal counsel to consider the prosecution’s intrusion upon seclusion." On page 48 he states, “The defendant has been vilified and continues to suffer great harm because the municipality convicted the defendant before the defendant had an opportunity to appear before the court.”

The defendant presents as a person aggrieved. This was also evident throughout the trial proper. This may very well be so, but it is in no measure determinative of the matter at issue. The defendant seeks to re-litigate his case by introducing new information to the court such as references to the Farming and Food Production Protection Act 1998 and the Municipal Act 2001. It is trite to say that this court is functus in its decision respecting the defendant’s guilt and, therefore, declines to entertain these submissions.

The defendant seeks to introduce information contesting my decision in finding him guilty of the 56 counts by alluding to mistakes made by me in fact and law. I decline to entertain these submissions as this is not the right court to consider an appeal of my decision on those grounds. The defendant in his conclusion argues that his Charter rights have been violated. He alludes to s.12 , 8 , and 10 of the Charter specifically. Firstly, the Charter challenge arguments, if indeed that is what they are intended to be, are not procedurally properly before the court.

Secondly, the mere fact that he alludes to these alleged violations during sentencing submissions and without specific argument is not sufficient for me to entertain his concerns and, therefore, I decline to do so. There is no reasonable argument adduced to satisfy me that the conviction against the defendant should be stayed. Application of the Keinapple Rule Against Multiple Convictions to Multiple Counts. The defendant argues as his alternative position that 55 of the 56 counts must be stayed pursuant to the rule against multiple convictions, so that the total fine imposed is a maximum of $10,000.

I will address this in some detail. The Rule Against Multiple Convictions The rule against multiple convictions is a common law rule that prohibits more than one conviction for the same criminal wrong. The rule was set out by the Supreme Court of Canada in R. v. Keinapple [1975] and subsequently refined and clarified in R. v. Prince [1986], Supreme Court of Canada. In Prince , Justice Dickson stated that the rule against multiple convictions requires both a factual nexus and a legal nexus between the offences charged.

Determining whether there is a legal nexus is often the more complex task because it requires identifying and comparing the elements on each offence to determine whether there are “additional and distinguishing elements” between the offences, Prince , para. 27-36. In this case, however, the 56 counts all relate to the same offence, so it is clear that they share a sufficient legal nexus. The issue in this case is whether there is a factual nexus between the various counts. With respect to the factual nexus Justice Dickson stated the following: The Scope of the Keinapple Principle (

i) The Factual Nexus Between the Charges , para. 21 and ongoing. It is elementary that Keinapple does not prohibit a multiplicity of convictions; each is in respect of a different factual incident. Offenders have always been exposed to criminal liability for each occasion on which they have transgressed the law and Keinapple does not purport to alter this perfectly sound principle. It is therefore a sine qua non for the operation of the rule against multiple convictions that the offences arise from the same transaction.

The degree of factual identity between the charges that is required to sustain the application of the rule is exemplified by the decision of this court in Cotê v. R. which involved two offences normally capable of supporting the rule against multiple convictions: see Hewson v. R. In Cotê, the accused had been found in possession of property two years after his conviction for a robbery in respect of the same

property. The accused had been sentenced for the robbery offence, imprisoned, and released from prison when the police found him in possession of the stolen property. Evidently, the accused had hidden the fruits of his robbery before he served his jail sentence. It was argued that possession by the original thief was merely a continuation of the act of theft. The majority of the court, however, held that the accused’s possession was sufficiently removed in time and circumstances from the original taking of the property so that the accused could be convicted of both offences.

In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? Application of the Rule to the Facts on this Case Applying the analysis set out in Prince to the facts of this case, the critical factor is that each of the 56 counts is grounded in a separate act, ie. the removal of the specific tree identified in the particular count. The removal of each tree required a separate distinct physical act.

I understand that trees were cut down one at a time over a period of several days or weeks. (Had the evidence disclosed that the trees were removed simultaneously through a single act, for example, such as spraying them with a chemical, the factual nexus issue would be more complicated.) The validity of proceeding on a one-count per tree basis is also reinforced by the content and structure of the bylaw. The wording of s.4 of the bylaw makes it clear that the removal of a single tree constitutes an offence. The

section prohibits the removal, injury, or destruction of “a tree.” In addition, s.4 limits the offence to a tree that falls within the scope of s.3.1 of the bylaw.

Where an offence is alleged to have taken place on private property, the offence only applies to “a heritage tree,” which s.2.15 of the bylaw defines as, “Heritage tree means any tree with "a DBH,” - diameter at breast height - “of no less than 45 centimetres, 18 inches, with the exception of all willow species, all poplar species, Siberian elms, Manitoba Maples, Norway Maples.” As a result, in order to determine whether an offence has been committed under s.4, I must look at the individual circumstances, size, and species of the subject tree, which in fact I did.

I acknowledge that the permit process established by the bylaw contemplates a permit or permit application in relation to the removal of more than one tree. This, though, does not, in my view, alter the nature of the offence section. The process simply reflects the fact that an applicant may wish to remove more than one tree located on a property and it would be absurd to require a separate application and permit for each tree.

Although a permit may authorize the removal of multiple trees, the permit process ensures that one can easily ascertain whether a particular tree falls within or outside of the scope of the permit issued, can therefore be removed.

Section 6.1 of the bylaw states that, “Every owner who intends on injuring or destroying a tree where a permit to do so is required shall first complete a permit application form as set out in

Schedule C to this bylaw. In addition, the permit application requires the applicant to describe which tree, (or trees,) are the subject of the application by number of species and size (DBH) and their location on the property.” The Validity of the Information and Crown Discretion in the Laying of Charges I recognize that it would have been open to the prosecution to have laid a one-count information covering removal of all trees on the basis that the removal of all the trees, despite being distinct acts, form part of a single transaction.

One can argue that in many cases involving the removal of trees, the prosecution could and would opt to proceed on a single global count because it would not be in a position to adequately differentiate among the trees removed and, therefore, to provide sufficient detail regarding which specific tree is at issue in each count. However, in fact, that the prosecution could have prosecuted the accused on a single “global” count does not mean that it was somehow

improper for the prosecution to have proceeded on separate counts. As stated in Ewaschuk, Criminal Pleadings and Practice in Canada , “Where a single transaction involves several incidences, the Crown may choose to charge only one count (eg. criminal negligence causing three deaths) or to charge separate counts in respect of each incident. This subject was also referenced in R. v. Hulan [1969]. At paragraph 20 that honourable stated, I do not think it necessary to discuss again the case referred to in R. v. Flynn , supra.

I have recited the particulars which are above- quoted only to indicate the possibility of a count referring to more than one incident or occurrence is not of itself grounds for holding it to be bad. “Transaction” as used in s.492 is not synonymous with “incident” or “occurrence,” notwithstanding the fact that each of the incidences might, if the Crown so chose, have been the subject of a separate count. The prosecution has a similar discretion in deciding how to lay charges in the Provincial Offences Act context, provided that the information complies with the requirements of s.25 of the POA.

For example, Ontario (Labour) v. Black and McDonald Ltd., ONCA. The appeal court judge was wrong to say that the trial judge had discretion to reduce the number of counts to one count against each defendant. No such discretion exists. A trial judge cannot collapse an information by dismissing some of the counts simply because those counts may overlap with other counts arising out of the same incident. To give a trial judge that discretion would improperly interfere with the Crown’s discretion to lay the charges it deems appropriate.

The appeal court judge therefore erred in upholding the dismissals on counts one, two, and four. Although not argued by the defendant, I believe it is important to address the issue of “stacking” counts. In a case where each offence is punishable by a mandatory minimum sentence (such as a minimum fine,) one could argue that it would be improper for the prosecution to artificially divide an offence into several separate offences in order to “stack” the minimum sentences.

It is quite obvious that the prosecution in proceeding on 56 separate counts, rather than a single global count, wanted to be in a position to seek a total fine higher than the $10,000 maximum that applies to each count. However, because proceeding on multiple counts only affects the maximum fine available, given that there is no minimum fine in this case, I retain full judicial discretion to impose what I consider to be an appropriate fine, taking into account the principle of totality. I also believe it is important to address the sufficiency of the information at this point.

I am satisfied that the information in this case does meet the requirements of a valid information, as set out in s.25 of the Provincial Offences Act. Each of the 56 counts on the information identifies that specific tree whose removal is the subject of that particular count. The defendant did not claim that the information fails to reasonable inform him of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial, R. v. Cotê and Vancouver (City) v.

Wiseberg [2005] BCSC, where an information setting out 28 charges of removing a tree without a permit was found, on appeal, to be valid as the accused had received sufficient particulars to know which trees were the subject of the charges. Similar or Analogous Cases Under the Provincial Offences Act In DiFruscia [2010] ONCJ, the appellants were charged with numerous counts of failing to install or maintain a smoke detector on each floor of a premises, contrary to the Fire Protection and Prevention Act .

A separate count was laid for each floor that lacked a working smoke detector, resulting in multiple counts for a single property. His Honour Harris rejected the appellant’s arguments that some of the counts should have been stayed, paras. 75-84. Applying the analysis set out in Keinapple and Prince , His Honour Harris found that Keinapple did not apply because there was no factual nexus between the offences. He also found that the fact that the prosecutor could have prosecuted the conduct through less counts (for example, one charge per property) did not affect the Keinapple analysis.

Specifically, His Honour Harris stated, Multiple Convictions/the Rule in Keinapple 75. The appellants were charged in the various informations with either failing to install or maintain smoke alarms as required by the

Fire Protection and Prevention Act. 76. The Act requires that the owner of the property must install and maintain smoke alarms on each and every floor of the property. Failure to do so constitutes an offence. 77. This means that it is an offence to fail to install or maintain a smoke alarm in the basement. It is also an offence if one fails to do so on the main floor. It is also an offence if one fails to do so on any other floor. Compliance with the requirements with respect to one or even two floors does not absolve the property owner from legal liability.

He must comply with respect to all of the floors in the building. 78. It is true that the prosecutor in this case could have chosen to charge the appellants once per property and based the failure to comply with the Law on the failure to install and maintain a smoke alarm on any one or more of the floors. 79. The fact that they could have pro- ceded that way, however, does not mean that they had to. 82.

Where the appellants were charged with failing to install or maintain a smoke alarm on the top floor of a building, the act or omission which ground the charge was the failure to install or maintain a smoke alarm on the top floor. Similarly, where they were charged with failing to install or maintain a smoke alarm on the main floor of the same building, the act or omission which grounded that charge was the failure to install or maintain a smoke alarm on that floor. These are two separate and distinct acts or omissions. They are also two separate and distinct wrongs or delicts. 83.

Accordingly, it was open to the prosecutor to charge the appellants in separate counts with failing to install or maintain smoke alarms on each of the floors of the various properties. 84. The presiding justice of the peace did not err in her decision not to stay any of these charges on this basis. The appeal based on that argument therefore fails. In R. v. Vastis [2008] ONCJ, the appellant was charged with 11 counts of destroying a tree in an environmentally sensitive area contrary to a municipal bylaw passed under the Forestry Act . Each count related to one day on which the tree removal occurred.

On appeal the accused submitted that it was improper for him to have been charged and fined on a “per day” basis. Cooper, J. dismissed the appeal, holding that “each day of tree removal could, as a matter of common sense, be considered to be a single transaction," (paras 65-69). If common sense dictates that one day of tree removal can be considered a single transaction, it should also dictate that the removal of one tree could also be considered a single transaction. Cooper, J. also upheld the fines imposed in that case, which was $3,000 per count (paras. 70-73).

It should be noted that the total fine of $33,000 was greater than the maximum fine available for a single count of $20,000. For these reasons the Keinapple rule (also known as the rule against multiple convictions) would not require a conditional stay of 55 of the 56 counts of unauthorized removal of a tree. The rule against multiple convictions requires both a factual nexus and a legal nexus between offences.

While there is a legal nexus between the charges, there is an insufficient factual nexus because each of the 56 counts relates to the removal of a distinct identifiable tree, and because each of those trees was removed through a separate and distinct act. D. MITIGATING FACTORS As I understand the defendant’s position, the sentence should take into consideration the following mitigating factors: 1) The defendant is a first-time offender.

2 ) He believed he was doing the right thing in removing dangerous and dead trees. 3 ) Upon learning of the Stop Work Order on August 13 th , 2014, work stopped immediately. 4 ) He is a long-time resident of the area with a strong attachment to the property. E.

AGGRAVATING FACTORS The prosecution asks that the court to properly take into account aggravating factors, which include the defendant’s actions were deliberate; his attitude towards the regulatory regime contemptuous; his attitude towards those who attempted to stand in his way was highly aggravating; as a result of the commission of the offence, he realized a considerable monetary advantage; he was not the owner of the property; the persistent and continuing nature of the offence; the duration of the offence; the nature of the environment affected; the damage inflicted.

Considering the purpose of the bylaw, this was "a worse offender, worst offence" situation. DECISION His Honour Libman in R. v.

Iacono [2015] ONCJ, provides this very instructive observation when contemplating sentencing penalties: Professor Macrory, in his study of regulatory enforcement in the United Kingdom puts forth the following six "penalties principles" as the basis for any sanctioning regime: (1) sanctions should change the behaviour of the offender; (2) sanctions should ensure that there is no financial benefit obtained by non-compliance; (3) sanctions should be responsive and consider what is appropriate for the particular offender and the particular regulatory regime; (4) sanctions should be proportionate to the nature of the offence and the harm caused; (5) sanctions should aim to restore the harm caused by the regulatory non-compliance; and (6) sanctions should aim to deter future noncompliance: see Richard Macrory, Regu l atory Justice: Sanctioning in a Post-Hampton World (Consultation Document, May 2006).

This also can be found on www.cabinetoffice.gov.uk/regulations/documents/pdf/penalties. I am most satisfied this type of behaviour deserves a strong sanction that stresses the need for deterrence as enunciated in the aforementioned Ontario Court of Appeal decision in R. v. Cotton Felts Ltd. The fine imposed is $6,000 per count, for a total of $336,000. There will also be a term of probation imposed with the standard statutory terms and conditions for a period of two years. This is a fit sentence. It is one that is just and appropriate in the circumstances.

As observed by His Honour Libman in Iacono , viewing the penalty imposed in this case through the prism of Professor Macrory's 'six penalties principle,' reinforces my view that the quantum of the fine will not be viewed as a mere license fee, but rather as a sanction that is proportionate and responsive and a deterrent. I have considered the principle of proportionality in arriving at this quantum and the probation order. In Re B.C.

Motor Vehicle Act , [1985] the Supreme Court of Canada stated that a foundational principle of the Canadian sentencing regime is the principle of proportionality: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." This principle - as found in the Criminal Code s.718.1 - is based upon the fundamental notion that the punishment must fit the crime and that the degree of punishment must reflect the gravity of the offence and the moral blameworthiness of the offender.

Otherwise, society will have no confidence in the law or the fairness and rationality of the legal system. This notion was reinforced by the Supreme Court of Canada in R. v. Lacasse [2015], where, on page 64, it states, Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. It is quite clear to me that the defendant presents as an entitled individual. The property at issue, 558 Golf Links Road, belonged to his father. He grew up there and had a strong attach-ment to the property.

Although not the owner of the property, he believed he could act

on it with impunity. No one was going to tell him what to do on the property or how to do it. This sense of entitlement was evident throughout the trial proper and continued in the submission hearing stage. I agree with the prosecution that this is a "worst offender, worst offence situation." Firstly, I find the submissions of the defendant contrived, obfuscating and otherwise not credible or trustworthy. The defendant has clearly shown a lack of insight into the magnitude of his offences. He takes every opportunity to blame anyone and everyone.

He blames unknown politicians, the prosecution, bylaw officers, City of Hamilton officials, the police, persons unknown, and even this court for his predicament. He has taken no responsibility for committing any offences. He has shown a virtual complete lack of insight into his wrongdoing. The defendant on page 15 of his sentencing submissions states, "The prosecution struggles with their understanding of reality." If there is a struggle with reality, it most definitely rests at the feet of the defendant. He remains defiant to date; hence, in part, the necessity of a probationary period.

As stated in my reasons for decision in finding the defendant guilty in this matter, this was not a case of a few scrub trees being cut and destroyed, but many trees, some Heritage trees. There is a reason why the bylaw protects Heritage trees. They are old, majestic trees of specific type that cannot be replaced. Mr.

Canfor, a forest conservation bylaw officer with the City of Hamilton and the City of Hamilton's point person on all things forestry and tree-related matters, described the Golf Links property after the cuttings as having no regular logging patterns and the site as showing "chaos and destruction." One witness at the trial proper described the Golf Links property after the cutting as if a tornado had gone through it. An additional concern was voiced by Mr. Winkler in his testimony regarding the issue of safety. According to Mr. Winkler, the trees were cut, in his open, by amateurs.

He described the cuts as "very dangerous cut," "badly cut tree…they were lucky," and, "extremely dangerous, could have killed the cutter." The defendant took it upon himself to clear cut the Golf Links property of many trees including the Heritage trees at issue. It is evident that the defendant did not consider the consequences of his actions or inactions. He did not take the appropriate steps to make certain he was abiding by governing laws, rules, and regulations designed specifically to ensure environmental protection and to ensure the safe removal of trees.

I have considered the Totality Principle in arriving at this quantum and the probation order. In R. v. M.(C.A.) [1996], SCC, references Clayton Ruby in his treatise, Sentencing, (1994), at pages 44 to 45.

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate." A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and propects.

I am satisfied that the combined sentence of $336,000 is not unduly harsh in that the impact does not exceed the gravity of the conviction or the overall culpability of the defendant. I am further satisfied that the quantum imposed relates to and reflects the sentencing goals of denunciation, deterrence (specific and general), and protection of the environment. I have also turned my mind to the issue of financial difficulty to the defendant in imposing this quantum.

There is no satisfactory evidence brought before me to suggest that the defendant is impecunious or could not otherwise afford to pay the fine imposed. Indeed, the prosecution contends that the defendant has profited greatly from the proceeds of the recent disposal of the 558 Golf Links property and sets out in great detail the financial machinations associated with the property. The defendant does not provide a cogent argument to counter the prosecution's position respecting profits realized.

Instead, his response on page 17 of his submissions, is simply "the prosecution's claim is completely unfounded and can only be characterized as fiction." I am most satisfied that this quantum, albeit significant and substantial, will not result in the defendant suffering financial distress. I have considered the Principle of Parity in arriving at this quantum and the probation order. It is once again instructive to consider His Honour Libman's observations in R. v. Iacono [2015.]

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

This is why it may happen that a sentence that, on its face, falls outside a particular range and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Everything depends on the gravity of the offence, the offender's degree of responsibility, and the specific circumstances of each case. There is a paucity of similar fact cases that I can look to guidance in setting a fit sentence. The decision in Vastis is instructive to me. In that case George Vastis was charged in 2003 with 11 counts of destroying a tree in an environmentally sensitive area. Mr.

Vastis was fined by my Brother Woloschuk $3,000 for each of the 11 convictions and was placed on probation for two years in order to ensure that he would implement the replanting and maintenance order directed by the court. The estimated cost of the replanting order which Mr. Vastis was to ensure was $122,260. I agree with the prosecution that this is not a case where replanting is in order. If it were, I would not have hesitated to impose such an order as part of the sentence.

In the absence of a replanting order and in light of a fine of $3,000 per tree imposed in Vastis some 15 years ago, and the gravity of the offence, and the defendant's degree of responsibility, I am satisfied that the quantum of $6,000 per tree satisfies the aims of the Principle of Parity. I have considered mitigating factors listed above in arriving at this quantum and the probation order. I have reduced the penalty on each count from $10,000, which is the maximum sentence per count and the amount sought by the prosecution by $4,000.

I have considered aggravating factors in arriving at this quantum and the probation order. I believe the aggravating factors have been shown to the satisfaction of this court beyond a reasonable doubt. There is no doubt in my mind respecting the existence of each of the aggravating factors enumerated above. As held by the Ontario Court of Appeal in the aforementioned R. v. Cotton Felts Ltd. [1982], without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere license fee for illegal activity.

I am satisfied that the sum of $336,000 adheres to the direction of that court. Let me be very clear, if I have not been so to this point. There is a need to send a strong message to all that destruction of environmentally sensitive areas will not be tolerated in the Province of Ontario. And those that thumb their nose at laws designed to protect these areas will suffer significant consequences. Thank you. MS. CLAYTON : Thank you, Your Worship. With regard to the probation order, sir, does Mr. McNiven wait here and - while the order is drafted? HIS WORSHIP : Yes, if he wishes.

COURT REPORTER : He does not need to wait; it will be mailed out to him. MS. CLAYTON : Pardon me? HIS WORSHIP : At this stage I'll stand down, please. MS. CLAYTON : Madam Reporter was just going to say something about the probation order, I think. HIS WORSHIP : I will talk to her outside. MS. CLAYTON : Okay, thank you. WHEREUPON MATTER IS STOOD DOWN…

WHEREUPON MATTER RESUMES… HIS WORSHIP : So, Madam Clayton, Mr. McNiven is not present, and I neglected to ask him time for payment. So, what I am going to do is extend two years, which coincides with the probationary period. MS. CLAYTON : Thank you. HIS WORSHIP : Which is a lot more than this court usually gives, which is maximum six months. But in the circumstances, and seeing the quantum, I think two years is more than sufficient. Yes, Madam, anything further from you? MS. CLAYTON : No, sir. It's my understanding, though, that the probation order will be mailed out to the defendant, Mr.

McNiven not being here currently to do anything other than the mailing, so I just wanted to put that on the record. HIS WORSHIP : Okay. So, if he had been here with respect to signing, we could have canvased the amount of time to pay with him, but he is not here, so there's nothing fatal with respect to that component, though. As I indicated, two years is significantly more time that I usually offer, and I think that should be satisfactory to him also. MS. CLAYTON : I think Mr.

McNiven also knows, he's been in contact with the Provincial Offences Court Administration Office on many occasions, I expect that he's aware that he can contact that office to find out what the time to pay is that's been endorsed. HIS WORSHIP : Very good. Okay, anything further from the prosecution? MS. CLAYTON : No, sir. HIS WORSHIP : Thank you. MS. CLAYTON : Thank you. May I be excused? HIS WORSHIP : Please. Have a good day. MS. CLAYTON : Thank you. ***